Herbert v. Lando

Anthony Herbert was a retired U.S. Army officer and a Vietnam veteran who had publicly accused his army superiors of war crimes and atrocities. Herbert and his accusations were the focus of a Columbia Broadcasting System, Inc. (CBS) television show, written and produced by Barry Lando, and narrated by Mike Wallace. Herbert filed a defamation lawsuit after the airing of the television program and the publication of a subsequent magazine article. He alleged that the program and article had falsely and maliciously portrayed him as a liar who created the war-crime charges just to cover up the real reason for his leaving the army.

During the course of discovery in the pending lawsuit, Herbert's attorney took depositions of several network employees, but responses to his questions were refused on grounds that the First Amendment protected against inquiry into the states of mind of those involved in the editing, producing or publishing process. A motion to compel answers was filed with the district court, which agreed with Herbert's attorney that the First Amendment afforded no such protections. The defendants appealed, and a divided court of appeals reversed, stating that there was an absolute privilege attached to the editorial process of a media defendant in a libel case. Herbert next petitioned the U.S. Supreme Court who agreed to hear the case on a writ of certiorari.